Friday, April 25, 2008

Who Holds the Copyright ?

Before I can publish any of the letters that I copied at the Bentley Library I must first get written permission from both the library and the copyright owner. This is a standard requirement of the library and applies to all of their collections. Today I received permission from the library with the caveat that it is my responsibility "to determine what constitutes a fair and reasonable effort to abide by copyright law."

Since my grandmother was the donor of the collection her heirs would be the owners - or would they?

I've done some reading and I think the copyright was/is held by each individual author, rather than the recipient. Since I do not believe that any of the letters meet the legal definition of published, I believe that per this table all of the letters whose authors died prior to 1938 are safely in the public domain.

For any authors that died after 1937 I would have to track down their heirs and get written permission from each. In some cases this would be a huge task, in other cases it might be doable. If I can't obtain written permission I believe that I can still use small parts of letters as "fair use." For example I might use a sentence or two from a letter that gives the date and place of death of a family member.

For authors that are still living I would need their written permission. Even though I could probably use parts of these letters as fair use, I will ask permission first. If someone is still living and doesn't want me to use anything they have written I will not.

There are dozens of letters that I believe are now in the public domain and plan to begin with them.

If you have more knowledge of how copyright law would apply to these letters and/or the genealogy sheets and notes that make up the collection I would appreciate your input.


Anonymous said...

Apple, I am not sure how you reached the conclusion you did from the table you cited. That table clearly shows that unpublished works created AT ANY TIME that are STILL UNPUBLISHED NOW are protected for the life of the author plus 70 years. (If you do not know when an author died, then the rule is that the item enters the public domain 120 years from the date of creation.)

An excellent book for the layperson has been written on this subject: "The Public Domain" by Stephen Fishman, the 3rd ed. of which was published in 2006 by Nolo Press. Much of what I am about to write is based on my understanding of what he wrote.

As you correctly determined, it is the author of each of those letters that who held copyright to what they wrote. The recepient held no copyright interest (but did gain title to the physical media -- the paper and the envelope, barring any prior agreement between the writer and recipient otherwise). This title transferred to the library when the gift was made to the library, so the library is completely within its rights to decide who can see the letters and what the rules are for allowing publication and/or copying of them.

All of the above notwithstanding, the letters presumably have no financial value because neither the writer nor the recipient were noteworthy individuals. In other words, if the amount of money that the letters could get at a well-advertised public auction were only a few dollars, then that would be the maximum amount of damages that you would be liable for if you violated the copyright. The legal heirs of the writer would have to go to court to win those damages, so you would also be liable for their court costs, and of course your own.

Your defense in court could be that what you did was Fair Use. In general, the less economic value a document has, the more latitude that courts have allowed for Fair Use. So it is conceivable that the court would find that even extensive excerting of nonvaluable letters would be permissable.

Note, I am not an attorney so nothing I have written should be construed as being legal advise.

Anonymous said...

I made at least one mistake in my above comment. An auction would only transfer ownership of the physical letters, so a court would not necessarily use the auction value as the yardstick to determine the extent to which the copyright infringement damaged the value of the authors' literary estates.

Charley "Apple" Grabowski said...

Thank you for your input, I really appreciate it. I hadn't thought about any dollar value that the letters might have. To me they are priceless but stepping away from my personal connection to them your point is a very good one. I have no idea if the Civil War era letters have any monetary value but they might. I doubt that any of the other would.

I do plan to use portions of the letters that help with dates or places but certainly nothing that an author or their heirs might find objectionable so I'm not really concerned about lawsuits, just doing things the right way.

I'm sorry that I was not clear in my post. I do understand that the letters are protected for the life of the author +70 years and that is why I am using a 1937 cut off date. As the letters were written by family members I do have all of their dates of death.

Chery Kinnick said...

Hi Apple,

It's a quandry, isn't it? I cannot give you legal advice, but what I personally would do is feel free to use my grandmother's letters in entirety. If you are unable to find the heirs of other letter writers, then use excerpts of their writings. You can rephrase what they write and add a dash of personality with a few quotes. It works quite well.

I had to seek permission to publish an English translation of an article written about some ancestors of mine (related by marriage, and not by blood). I was lucky enough to find the author's daughter through some cyberspace magic. But then, I also had to obtain permission from the person I hired and PAID to do the translation from Norwegian. Complicated!

Copyright law is complex for a reason, to allow for the protection of individuals' rights in unforeseen circumstances, but it doesn't mean that we are all going to get into trouble for any little mistake or lack of foresight. As long as you are not profiting monetarily from the publication of letters not written by your grandmother, I wouldn't worry too much.


I think the whole copyright thing
is bologna when the items were
once your own families letters
and photographs. I went through
this with original 100 year old family photographs that I tried
to copy for my neighbors family
history album. I can see if it is
someone famous or a company like
Disney protecting their interests.
But as usual it's all about money,
and now the genealogists have to
worry about a lawsuit. A very sad
world for history buffs. Good Luck Apple!